Excess of Democracy

I spend very little time on this blog on matters of policy, or the wisdom of particular laws. I spend almost all of my time discussing what the law, including the Constitution, authorizes or forbids. Occasionally, I dip into practical concerns of changes to laws, but these are Burkean by nature and tend to be contextual, offering some view of the law working with other laws, or how the law fits into a longstanding regime.

Florida enacted Amendment 4, which the people of Florida undoubtedly have a right to enact. I thought I’d dip into policy for a moment: the good of the Amendment and, in my view, the bad. And I thought I’d use the overused expression, two cheers for the amendment.

(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

(b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.

I have a lot of complicated views of suffrage laws, who ought to be eligible to vote in our democracy. But post-conviction felon disenfranchisement laws are an easier case for me. I don’t understand them and generally oppose them.

The felon (and the criminal more generally) has broken the social compact (the best of a number of imperfect ways of putting it) and merits punishment. Imprisonment is the most common form of that punishment. I think we overuse imprisonment, particularly as we overvalue incapacitation as a reason for punishment. But the release from imprisonment should, I think, mark a return to society, and that includes attempts to reincorporate the ex-felon into the ordinary things of citizenship.

Collateral consequences, then, typically are not the stuff we view as what the felon merits as his just deserts. They are sanctions we attach to the ex-felon as prophylactic stuff of society—don’t work in this job, don’t live near this park, don’t seek a security clearance, don’t vote, because, well, you’re dangerous, or we simply don’t think you ought to really be a part of our society. In a way, the felon has broken the social compact and is permanently barred from certain aspects of society, even after serving time in prison.

It might be that we as a society think that the felon merits these penalties. But, I think, to the extent we desire to restore the felon into the community, I don’t know that long-standing penalties that extend well after imprisonment (again, to the extent we value imprisonment as the primary form of punishment) have much place in a criminal justice regime. I could probably spend much longer thinking and discussing such things, but this is my high-level approach right now.

But a few points about the specifics of this particular amendment.

First, I think those who have been convicted of an election-related felony should be permanently disenfranchised. This is assuredly a very narrow category, and perhaps too narrow for a carve-out in this constitutional amendment. But I do think that if you have tampered with an election—voter fraud, voter intimidation, voter bribery, etc.—you, perhaps, ought to be permanently excluded from participating in future elections. It is a natural consequence for your disruption of democracy that you are no longer allowed to play this part in it. (Of course, you may play many other parts—advocate, campaigner, endorser, opinion-writer, etc.) I think it’s an area where the punishment ought to haunt you the rest of your life, and the punishment feels particularly tethered to the crime committed. But, again, perhaps that’s too narrow and too picky.

Second, the law carves out two easy targets, murderers and sexual offenders. One sad element of these carve-outs is political. The hasty rejoinder from a proposed law that enfranchise ex-felons is, “So if you’re convicted of murder, that person can cancel out your vote?” Of course, murderers spend most, if not all, of their lives in prison (indeed, some in Florida are executed). And perhaps general extension of ex-felon enfranchisement is better than no extension at all.

But worse, I think, are how we treat sexual offenders. Rape and child molestation are two particularly heinous crimes. Others, like statutory offenses in “Romeo and Juliet” cases, far less heinous. But in all of them, we spend little time thinking about the punishment these felons merit, and far more time seeking to maximize punitive consequences as long and as far-reaching as possible.

Disenfranchising murderers or sexual offenders who have served their time of imprisonment does not seem terribly well-fitted to a theory of punishment, except that we strongly dislike their offenses and want to keep them at the periphery of society. Maybe something about their offenses merits it. When it comes to voting, however, I’m not so convinced.

I understand that the perfect cannot be the enemy of the good. But, in some ways, I wish we’d spend more time thinking critically about the nature and purposes of punishment of crimes more generally, and how disenfranchisement fits in that scheme. I think Florida’s new Amendment 4 mostly gets it right.

As a final note, the amendment is the latest of a number of remarkable decisions of the people of the several states to dilute their own voting power, from enfranchising the freedman to enfranchising women to enfranchising 18-year-olds. It’s a remarkable and rather selfless decision of the people, not foisted on the people through a judicial construction. Every decision to broaden the franchise dilutes the voters’ votes who’ve approved that broadening. It’s probably a topic worth exploring another day, but I close on that thought.